Feeney v Secretary, Department of Communities and Justice

What the GIPA Act provides in respect of Government Information

1. The GIPA Act provides for the proactive release of government information, informal release of government information, as well as the formal release of government information. The Act provides various mechanisms for the operation of these provisions as well as a series of guiding principles / objects.
2. These principles are conveniently summarised in the case of Mannix v Department of Education and Communities [2014] NSWCATAD 35 which provides at [7] - [10] 7. The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: s 5. Applicants for access to government information have a legally enforceable right to be provided with access to it, unless there is an overriding public interest against disclosure: s 9. The GIPA Act overrides other statutory provisions that prohibit disclosure, apart from the "overriding secrecy laws" set out in schedule 1. In the case of those laws it is conclusively presumed that there is an overriding public interest against disclosure: ss11 and 14. 8. With respect to government information not covered by overriding secrecy laws, the Act establishes a principle that there is a public interest in favour of disclosure: s12(1). The category of public interest considerations in favour of disclosure is not limited: s 12(2). That subsection then sets out several examples of public interest considerations in favour of disclosure. 9. There can be an overriding public interest against disclosure only when the public interest test in s 13 is satisfied. It provides that "There is an overriding public interest against disclosure of the government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure". 10. In considering whether there is an overriding public interest against disclosure, the tribunal is to be guided by s 15, which provides, relevantly for present purposes, that agencies must exercise their functions so as to promote the objects of the GIPA Act and must have regard to any relevant guidelines issued by the Information Commissioner.
3. The GIPA Act has an objects provision at s 3, which includes a reference at s 3 (2) (a) that the legislation be applied so as to further those objects. 3 Object of Act (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. (2) It is the intention of Parliament: (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
4. The GIPA Act also provides a number of provisions which allow an agency to refuse to provide access to information, not on the basis of the content of the information, but on general administrative provisions. These types of matters arise in these proceedings.
5. In general terms these concern refusing duplicate applications, refusing on the basis that accessing the information would create an unreasonable diversion of resources, a discretion to determine the form of access and whether a response involves the making of a new record in order to convey the information. The GIPA Act also provides that an agency can refuse to provide the information under the Act, if the information is already available to access. This was the provision relied upon by the Department. In this regard s 60 (1) (e) was applied to refuse to deal with the application, because the Department reasonably believed that Mr Feeney was a party to proceedings before a court, and able to apply to he court for that information.

Administrative Review

1. On 30 April 2020 Mr Feeney applied for administrative review by the Tribunal.
2. The current application was filed within the period provided for by the GIPA Act. 101 Time for applying for NCAT administrative review (1) An application for NCAT administrative review must be made within 40 working days after notice of the decision to which the review relates is given to the applicant (unless subsection (2) gives a longer period to apply for NCAT administrative review).
3. There also is no dispute that the decision is an administratively reviewable decision to the Tribunal under the GIPA Act. Section 80 provides: 80 Which decisions are reviewable decisions The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part - (a) a decision that an application is not a valid access application, (b) a decision to transfer an access application to another agency, as an agency-initiated transfer, (c) a decision to refuse to deal with an access application (including such a decision that is deemed to have been made), (d) a decision to provide access or to refuse to provide access to information in response to an access application, (e) a decision that government information is not held by the agency, (f) a decision that information applied for is already available to the applicant, (g) a decision to refuse to confirm or deny that information is held by the agency, (h) a decision to defer the provision of access to information in response to an access application, (i) a decision to provide access to information in a particular way in response to an access application (or a decision not to provide access in the way requested by the applicant), (j) a decision to impose a processing charge or to require an advance deposit, (k) a decision to refuse a reduction in a processing charge, (l) a decision to refuse to deal further with an access application because an applicant has failed to pay an advance deposit within the time required for payment, (m) a decision to include information in a disclosure log despite an objection by an authorised objector (or a decision that an authorised objector was not entitled to object). (Emphasis added)
4. The decision under review falls with s 80(c ) as the Department has refused to deal with the application on the basis of the discretion provided by s 60 (1) (e) of the GIPA Act.
5. The Tribunal's function on review under section 63 of the Administrative Decisions Review Act 1997 is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.

Jurisdiction

1. The decision under review is a reviewable decision in accordance with s 80 (c) of the GIPA Act. The Tribunal's jurisdiction is enlivened by s 100 of the GIPA Act. The Tribunal notes that the application for review has been received within time.

The hearing

1. The matter was heard on 10 August 2020. Mr Feeney was represented by Counsel and the Department was represented by the NSW Crown Solicitor.
2. No witness gave evidence at the hearing however each party filed affidavits which were received without objection and read.
3. The applicant relied upon the following material:

• Application for Administrative Review and Grounds (filed 30 April 2020) Exhibit 'A-1'
• Affidavit of Thomas Carson Spohr affirmed 7 July 2020 - Exhibit 'A-2'
• Written submissions 7 July 2020

1. The respondent relied on the following material:

• Affidavit of Jodie Cobbin sworn 22 June 2020 - 'Exhibit R-1'
• Written submissions filed 23 June 2020
• Written submissions in reply dated 21 July 2020

Applicant's written submissions and submissions at hearing

1. Mr Feeney submitted that the Department's decision relies on systemic issues that arise and relate to the s 60 (1) (e) provision, and had not examined the exercise of the discretion on a case by case (or in this instance) Mr Feeney's particular circumstances. He said that the Department had applied the systemic matters and referred to paragraphs [10] - [14] of the decision.
2. That part of the decision is reproduced below, comprising the essence of the reasons. Whether the department should exercise its discretion 10. The Department exercises their discretion to refuse to deal in light of the following considerations which predominantly fall on preventing the wasteful deployment of the Department's resources. a. A GIPA Application should not be seen to substitute a subpoena, in circumstances where a subpoena may be issued. b. In issuing subpoenas, you may seek access orders allowing yourself first access, or both parties general access. c. Subpoenas are governed by principles such as relevance, legitimate forensic purpose, abuse of process, oppression, privilege and fishing and, in some situations, can only be issued if the court has granted leave. These principles operate to ensure that subpoenas and summons are issued validly and allows the court the broad power to decide what will best serve the interests of justice, including the 'elucidation of truth'. d. Under a GIPA application, applicants are not constrained by the principles which apply to subpoenas. This results in request for a large scope (and sometimes large date ranges) of information that is oftentimes [sic] not relevant to the case or proceeding on foot. e. A subpoena is a much faster and more cost effective way of obtaining records relevant to proceedings, noting a GIPA application can take up to and in excess of 20 working days to process, whereas a summons can typically be complied with within 10 working days. f. Responding to a GIPA application where there are current proceedings may result in duplication of work by material then also being sought via subpoena or a summons following the release of information under GIPA 11. The GIPA process requires an officer to consider the relevant public interest considerations, redact any information (if relevant), and write a notice of decision. As a general rule, we estimate that it takes two minutes to review each page identified within scope. In the event of third party personal information appearing in the documents requested, the Department must take steps to consult with the person named before providing access to information (section 54 of the Act). This excludes the time taken for a business unit to search for the records, scan any hardcopy files, and provide the documents to the Open Government Team. 12. Conversely, a subpoena does not require an officer to conduct a public interest test or redact information, such as third-party personal information. It is the Department's view, where a subpoena can be issued, the issuing of an access application with a large scope and date range is a wasteful deployment of the Department's resources. 13. The Department is concerned with the use of the GIPA Act in a way that is inconsistent with the objects of the Act and contrary to the intention of Parliament as expressed in the second reading speech amending the Act. That is, as a means to circumvent the inherent jurisdiction of the court to control its own processes. 14. Accordingly I have decided to refuse to deal with the application in whole under section 60 (1) (e) of the Act.
3. Mr Feeney confirmed in oral and written submissions that he was a defendant in criminal proceedings before the District Court of New South Wales. Mr Feeney relied upon the evidence of his witness Mr Spohr to set out that the information is needed for purposes beyond the purpose of a particular proceeding before the court. The submission being that under subpoena he would not be able to use the material for a purpose outside of those proceedings, whereas under the GIPA Act the use is unlimited. This was explained in Mr Spohr's evidence.
4. At [36] - [41] of Exhibit 'A-2' Mr Spohr explained the future use of the material sought under the GIPA application. He set out his experience in dealing with high risk offenders as referred to in the Crimes (High Risk Offenders) Act 2006 (the HRO Act) and matters relating to Extended Supervision Orders (ESO). Mr Feeney is a client who falls into this category. 36. In my experience, matters involving the enforcement of ESO conditions are subject to more breach proceedings than other forms of conditional liberty. Given (amongst other things) the number and strictness of conditions, it is common for people who are subject to an ESO to have multiple alleged breaches over the course of an order. 37. The original proceedings for orders under the HRO Act are universally the subject of a grant of Legal Aid, and almost invariably conducted by in-house solicitors (although they are very occasionally assigned to private practitioners). Breach proceedings are also ordinarily the subject of a grant of Legal Aid. 38. The result of the foregoing is that Legal Aid, acting on behalf of a particular client, will at times rely upon material obtained on a previous occasion in [sic] behalf of that client in relation to a subsequent breach allegation. Such material may be relevant to subjective factors on sentence, or they may be relevant to substantive issues, such as the correct interpretation of the conditions of the order. 39. Like all documents obtained under subpoena, documents compelled for production in one set of criminal proceedings are subject to the implied undertaking that they are not to be used for any other purpose, including other proceedings. The result is that, unless the documents were tendered or the accused released from the undertaking by leave of the court, any document obtained by subpoena in one criminal matter is unavailable in subsequent matters. 40. Given what I have set out above about the frequency of alleged breaches of ESO's, obtaining documents under subpoena means that the documents are unable to be used in relation to future alleged breaches. 41. They are also unable to be used for other collateral purposes such as in discussion with Departmental Supervising Officers the current conditions of supervision, or in making applications for variation or lifting of ESO conditions. In this way, GIPA applications have significant logistical advantages over material obtained under subpoena.
5. In oral submissions Mr Feeney challenged the Department's submission that the words 'lowest reasonable cost' (as set out in s 3 of the GIPA Act) should be interpreted as meaning the lowest cost to Government. Mr Feeney suggested that it should be viewed as the lowest cost to a citizen but did not expressly exclude the term as including Government.
6. Further in respect of the application of the objects of the GIPA Act to the decision under review, reference was made to the case of Singh v Legal Aid Commission (No 2) [2015] NSWCATAD 5. In that case the Tribunal noted in a discussion about the objects of the GIPA Act that the power of an agency to refuse to deal with an application should only be used as a last resort.
7. Mr Feeney made submissions about the purpose of s 60 and in particular the matter in question, s 60 (1) (e). It was conceded that s 60 is a breach of the general permissive operation of the GIPA Act. The Statutory Review report of the GIPA Act which was annexed to the Department's Exhibit 'R-1' was referred to in submissions. At [5.45] of that report the following is set out: 5.45 We appreciate, however, that in complex litigation, requiring agencies to gather information under two possibly competing, and not necessarily concurrent, processed is potentially disadvantageous for agencies. Noting that individuals are in no way restricted in their ability to make GIPA Act applications to gather material which might be relevant to future proceedings before those proceedings commence, and in deference to standing court procedures, we consider that there is value in amending section 60 (1) to include a further reason for refusal (a new subsection (1) (e) ). However, we consider that the proposed section 60 (1) (e) should be caveated and conditional.
8. Mr Feeney submitted that the Statutory Review noted that applications under the GIPA Act can be a faster and more cost effective approach to obtaining such material that a court order or discovery process. Ay [5.43] the report notes: 5.43 Several submissions suggested that section 60 (1) (d) be expanded (or a new subsection (1) (e) be inserted) to allow agencies to refuse certain applications to access material that is relevant to court proceedings that are already underway. These submissions suggested that, at present, it would be possible for a GIPA Act application to be made by a party to proceedings (or individuals acting in concert with such a party) to facilitate swifter access to information relevant to those proceedings, or to avoid costs that might apply to discovery.
9. Mr Feeney submitted that any discretions under the GIPA Act would therefore be exercised in favour of access being granted under the GIPA Act than via a court process. This it was submitted is consistent with the objects provision at 3 (2) (b) to facilitate the prompt and lowest reasonable cost access to government information.
10. Mr Feeney also referred to the second reading speech of the Government In formation (Public Access) Amendment Bill 2018 annexed to Exhibit 'R-1'. Mr Feeney drew attention to the Attorney General's speech as where in addressing the insertion of s 60 (1) (e) into the GIPA Act, the following was said in Parliament. I now turn to the interaction of the GIPA Act and court processes. Currently, an agency can refuse an access application if the information requested is already available to the applicant through a subpoena or other court order for the production of documents. Item [20] of schedule 1 amends section 60 to extend the circumstances in which an agency can refuse an access application to include where it reasonably believes the applicant or someone acting in concert, is a party to current court proceedings and can apply to the court for the information. This prevents the possibility of using the GIPA Act to circumvent the jurisdiction of the court to control its own processes. This amendment will not restrict applicants from gathering material that might be relevant to future court proceedings before those proceedings commence.
11. Mr Feeney submitted that contrary to the matters referred to in the second reading speech, there is no court order in place concerning the information within the scope of the GIPA Act application. As such he is not trying to circumvent the jurisdiction of the court, which was one of the basis for the section being inserted. In addition Mr Feeney submitted that this is not a situation where he is seeking to obtain information that he would be prevented for accessing under a subpoena. As such he is again not seeking to circumvent the court process as the information would in all likelihood be produced as it has a legitimate forensic purpose in the proceedings.
12. Mr Feeney submitted that the objects of the GIPA Act operate to guide the exercising of any discretion under that Act by the deciding agency. He submitted that unless the application would have the effect of circumventing the jurisdiction of a court, it would be most appropriate to exercise the discretion in s 60 (1) (e) in favour of access. This would require the agency to deal with the application.
13. Mr Feeney noted that in the Statutory Review there was no evidence as to how widespread the perceived problem was, (created by agencies having to process large requests under possibly two competing regimes). Because of this lack of information or evidence, the review (and the Legislature) determined to place a discretion on the provision whereby the agency can consider the relevant factors and then decide whether the facts warrant invoking the discretion to refuse to deal with the matter.
14. Mr Feeney set out what he considered to be the relevant factors with regards to exercising the discretion. He said that the nature of the criminal proceedings and his role in them, the situation that the issuing of a subpoena would give any party a fairly automatic right to the material produced, whether an access applicant has or intend tends to seek access under the court process, and the nature of the information for which access is sought are all relevant factors. In addition he submitted that facts such as the cost and procedural technicalities in issuing subpoenas contrasted with the GIPA process, the fact that material provided under the GIPA Act could be used for a number of purposes whereas subpoenaed material could not be used outside of the proceedings, and the general costs and resource implications for the Department and any other agency were also factors which were relevant in determining whether to exercise the discretion.
15. Mr Feeney disagreed with the Department's submission / position that the systemic considerations concerning overall costs and resource implications were highly relevant and he said that they could not possibly encompass all factors of a particular case or application.
16. Mr Feeney submitted that as the Department (and the Tribunal) was required to consider how to exercise the discretion, then the individual factors would be of greater weight than the systemic factors. To only look at the systemic factors would be contrary to the proper exercise of the discretion. Mr Feeney said in written submissions that: 49. Because the Tribunal must exercise its discretion on a case-by-case basis, reference to the factors of relevance to an individual case, it is generally likely to be the case that considerations specific to the individual access applicant and application will be of greater importance and thus command greater weight than systemic resource considerations. In the present case, the applicant accepts that the Department's systemic resource considerations are of some limited relevance, but says that there are also resource considerations relevant to NSW Legal Aid that are of relevance. The two sets of such considerations - both bearing on government resources - effectively cancel one another out. 50. When all relevant factors are considered, they are overwhelmingly in favour of not exercising the discretion to refuse to deal with the applicant's access application.
17. Mr Feeney raised some other personal factors in oral submissions at hearing which built on matters in his written submissions. He submitted that if an accused person issues a subpoena then it puts the prosecution on notice as to the strategy of the defence by the terms of the schedule. If a subpoena issues, then in all likelihood the prosecution can gain access to the material. Once again the issue is not so much the material itself but the revealing of the strategy employed by the defence. This is a particularly important consideration in criminal matters where the defence is under no positive obligation such as the prosecution or parties in civil proceedings.
18. In addition Mr Feeney referred to the forensic disadvantage of issuing a subpoena with a lack of knowledge of what material was actually held.
19. In respect of whether dealing with a GIPA Application when a subpoena was available would result in a duplication of work (for the agency) Mr Feeney said that he had given specific instructions not to issue a subpoena. Therefore he said that there would be no duplication of work and that ground relied upon by the Department would fall away.
20. In addition Mr Feeney submitted that the timing of the GIPA application, as set out in Annexure 'C' to Exhibit 'R-1' (being a letter from his Solicitor dated 19 February 2020 making the application under the GIPA Act) specifies matters relating to being instructed by Mr Feeney and referring to his MIN (Master Inmate Number). This places the application squarely in the context of the criminal proceedings and he says that the application arises out of instructions given in the defence of those proceedings. For this reason Mr Feeney submits that he has deliberately adopted a course to defend or respond to the proceedings by utilising matters arising from material discovered through the GIPA process.
21. Mr Feeney submitted that some of the arguments put forth by the Department (as to why a subpoena was a preferable course) did not consider the facts relating to the current application. The Department raised clauses 2 (g) and 2 (h) from the Table to s 14 of the GIPA Act as factors which would limit production of identified material to Mr Feeney under GIPA. Those clauses refer to overriding public interest consideration against disclosure which can be considered when weighting the competing public interest in favour of disclosure of information. Clause 2 (g) refers to a public interest consideration against disclosure relating to disclosure of the information could be reasonably expected to prejudice the supervision of or facilitate the escape of any person in lawful custody.
22. Mr Feeney submitted that the date range of the information that he sought was records from 29 November 2019 to 19 February 2020. He noted that he was released from custody on 25 November 2019 and submitted that such a consideration (cl 2 (g)),would have no bearing on his GIPA application as a result as it was not enlivened.
23. Mr Feeney also addressed the case of Commissioner of Police v Danis [2017] NSWCAPAP 7 (Danis) which was raised by the Department in submissions. At the time of the decision in Danis the GIPA Act amendments including s 60 (1) (e) were not in force. Danis dealt with the related provisions s 60 (1) (d) which provides a ground to refuse to deal on the basis that: (d) the information is or has been the subject of a subpoena or other order of a court for the production of documents and is available to the applicant as a result of having been produced in compliance with the subpoena or other order,
24. Mr Feeney submitted that the Department conceded that they did not refuse in all instances to deal with matters where s 60 (1) (e) was enlivened. He referred to the Department's evidence at [16] of Exhibit 'R-1' The Department's witness evidence was: 16. Since the amendment to section 60 (1) (e) was introduced in November 2018, DCJ has reused to deal with 83 access applications in reliance on that provision. DCJ does not refuse to deal with every application it receives from an applicant that it is aware is also a party to legal proceedings. Rather it assesses whether to exercise the discretion conferred by s 60 (1) (e) on a case-by-case basis.
25. Mr Feeney submitted that the Department assumes complexity in the GIPA application for the information but assumes simplicity if the same application was to be made by way of a subpoena. Mr Feeney said that in the current matter all resource questions ultimately come back to the Crown as both the Department's resources and those of Legal Aid NSW are public resources.
26. Mr Feeney submitted that on administrative review, the Tribunal should exercise the discretion on the basis of the evidence now before it. In addition in exercising that discretion it would be open to the Tribunal to give guidance on how agencies should in future apply the discretion.

Respondent's written submissions and submissions at hearing.

1. The Department filed submission and submissions in reply. The Department noted that there had been some narrowing of scope of the applications as Mr Feeney was seeking information in the period 25 November 2019 to 19 February 2020 which was broadly Corrective Services material being a business centre within the broader Department.
2. The Department noted that the information is broadly records as set out at [30] of Exhibit 'R-1'and include: Community Corrections reports such as pre-sentence reports and pre-release reports prepared by Community Correction Officer attached to correctional centres. The records would include material prepared to assist the State Parole Authority as well as some police records court documents and testing results including drug and alcohol and psychological testing results.
3. There was some discussion between the parties at hearing that some of this material related to Corrective Services client's generally not just Mr Feeney. However it was common ground that there were relevant court proceedings such that s 60 (1) (e) was enlivened, and nearly all of the information related to Mr Feeney.
4. The Department referred to their evidence at [25] and [29] of Exhibit 'R-1' which set out the searches conducted by the Department which extended to actual inquiries pertaining to where information is held, the nature of the information held and the nature of legal proceedings to which Mr Feeney is a party.
5. The Department submitted that on the basis of those searches and the matters outlined in the decision, that this was an applicable matter to exercise the discretion. Both the Department and Mr Feeney referred to the case of Danis. The Department took the Tribunal to the matters raised at [43] of that decision.
6. The Appeal Panel at [43] discussed s 60 (1) (d) in the context of s 60. 43. Section 60 is clearly designed to give agencies some flexibility in the administration and processing of access-to-information requests. Each of the grounds has at its core the sensible and efficient of deployment of agency resources. Access applicants generally are assisted if agencies are not tied down by voluminous applications (see (a)) or by having to reprocess applications that have already received attention either through previous determinations (the focus of (b) and (b1)) or by other official means (the focus of (d)). An agency may refuse to deal with a request on one of the grounds found in s 60(1)(d), and thereby avoid the need to make a final decision as to the merits of the request. Read together it can be seen that the grounds listed in s 60(1) have as an aim the avoidance of wasteful use of administrative resources (see especially (a)) or situations where the applicant has already obtained a practical result (b), (b1), and, arguably (d)).
7. On the issue of resources (as raised by Danis ) the Department submitted that that routinely the cost of dealing with a GIPA Application for Corrective Services information is in the range of $870- $1044 per application. Both parties made submissions about resources being involved no matter which approach (subpoena or GIPA application) was advanced and that in the current matter the resources are ultimately public resources being expended due to the grant of Legal Aid.
8. The Department made a submission that they did no agree with the narrow construction of s 60 (1) (e) put forward by Mr Feeney. The Department said that they accepted that an agency must consider each instance of exercising the discretion (on a case by case basis). However the Department did not accept that when considering matters on a case by case basis, that the individual considerations should be afforded greater weight than the systemic considerations identified by the Appeal Panel in Danis. The Department submitted that nothing in s -60 or the broader construction of GIPA supports a submission as to individual factors having greater weight.
9. The Department said that when considering the nature of the related legal proceedings the Legislature did not discriminate between civil proceedings and criminal proceedings.
10. The Department made submissions in reply to Mr Feeney's evidence that to issue a subpoena in the criminal proceedings would open him up to some forensic risk. On this point the Department accepted that there may be a higher degree of visibility in an applicant seeking access to information by way of a subpoena, as opposed to under the framework of the GIPA Act. However the Department submitted that the practical limitations, and thus the extent of the forensic risk, are lessened in a case such as the current one, because it (the issue) was presently before the Tribunal.
11. It was clear from written submissions in reply that the Department had scrutinised the information subject to the GIPA application, or had done further investigations of the background holdings on Mr Feeney as their written submissions referred to the nature of the charges, the status of pleas, and (from his initial submissions at [15]) that he wishes to use the information (in part) for submissions on sentencing for the charges to which he has pleaded.
12. The Department did submit that the nature of the charges is relevant and referred to clause 326 of the Crimes (Administration of Sentences) Regulation 2014 concerning disclosure by the Commissioner of Corrective Services. That clause sets out the circumstances in which the Commissioner may disclose such information. The clause links to the provision in s 257A of the Crimes (Administration of Sentences) Act 1999. For these reasons disclosure of this sort of information was contemplated by the legislature for specific purposes.
13. The Department maintained their submission that a subpoena is a quicker method for Mr Feeney and in that regard, exercising the discretion against him (in deciding not to deal with the matter). was actually to Mr Feeney's benefit as he would receive the information more quickly, and as was also submitted was (in the Department's view) likely to receive a greater amount of information.

Consideration

1. I note that much of the Department's evidence focused on the resources involved in processing GIPA applications generally, and Mr Feeney's application in particular. I also note that that evidence indicates that the Department has in a detailed manner considered the nature of Mr Feeney's application, and therefor dealt with it specifically, or as discussed above, on a case-by-case basis.
2. This consideration has however predominantly focused on the issue of resources. When the actual decision is considered this focus becomes apparent. At [10] of the decision the Department refers to: 10. The Department exercises their discretion to refuse to deal in light of the following considerations which predominantly fall on preventing the wasteful deployment of the Department's resources.
3. A series of criteria (as reproduced at [26] above) predominantly if not exclusively refer to resource related matters. It is clear from the face of the decision that many of the reasons as to why an agency might exercise a discretion in a particular manner are not considered. In my view matters relating to Mr Feeney's motivations for proceeding along the GIPA application process have not been fully considered. It may be that many of those issues were not contemplated or were unknown to the Department. However on my reading of their decision the discretion concerning s 60 (1) (e) appears to have been applied in a manner consistent with the approach in Danis to s 60 (1) (d).
4. That section refers to matters where the documents are already available to an access applicant, prior to the application being brought. (d) the information is or has been the subject of a subpoena or other order of a court for the production of documents and is available to the applicant as a result of having been produced in compliance with the subpoena or other order, (Emphasis added)
5. In the current matter the information is not nor has it been subject to a subpoena or other order of a court for production. As a result the information is not available to the applicant as a result of production or other compliance with a court order. For those reasons I believe that the position in Danis is not entirely on point, though it clearly does deal with s 60 (1).
6. In Danis the Appeal Panel made the following observations at [48] - [49] when reviewing the facts before the Tribunal below. 48. Factor (a) relied on by the Tribunal - that the DVD related to the applicant's son - might have some arguable relevance. A parent might be said to have a stronger stake in getting full access to material that bears on a family member, as against material of some other kind. But equally privacy considerations and respect for the wishes of the child might come into play as countervailing factors. 49. In our view, the Tribunal when reviewing decision to invoke a s 60(1) should examine the matter, at least in part, by reference to systemic considerations such as the role provisions of this kind play in promoting the efficient administration of the GIPA Act, and the avoidance of wasteful deployment of limited resources. In the case of decisions founded on s 60(1)(d), the restrictions that apply to party use of subpoenaed material might be relevant, as well agency considerations in relation to respect for court orders. This is not intended to be an exhaustive statement of the matters to be taken into account in any particular case. We accept that there may be factors of a personal kind, related to the particular application and the access applicant's personal circumstances, that may also be relevant.
7. The Appeal Panel was dealing with information already revealed to the access applicant. In the current matter the information has not been revealed. Whilst s 60 (1) (e) was inserted and at the time the policy and explanatory reasons did make reference to resource and duplication issues, the provisions maintain the discretion to deal, or to not deal with an access application. However unlike s 60 (1) (d) instances such as Danis, in my view weight must be given to a range of factors (in addition to resource issues). The factors referred to by the Appeal Panel are present in the current application. Personal factors, including the circumstances of a defendant in criminal proceedings are in my view relevant considerations.
8. On my assessment the weight as referred to by the Appeal Panel in Danis placed on systemic resource issues was clearly because the Tribunal below in that matter had not considered or adequately addressed that issue, and that analysis was occurring in a context where the access applicant had already obtained access via a court process. In the current case there is not court process in train and based on Mr Feeney's evidence none is likely.
9. In determining whether to exercise the discretion to refuse to deal with an access application, and deciding the matter on an individual (or case-by-case basis) as agreed by the parties, the decision maker is required to consider all relevant factors to the matter. If the Parliament had intended for resourcing issues to trump other factors (and that there was an available court process instead for the information), then I believe that the provisions would not have contained the discretion.
10. In such a situation the GIPA Act would have provided that the application is refused merely because there is an alternate method of accessing the information. Whilst the GIPA Act does not currently include such provisions, as only invalid applications, and material that falls within Schedule 1 and Schedule 2 is automatically excluded, it seems clear that from an analysis of the words of the section, and the reading speech and statutory review, that the decision maker is to consider all relevant and present factors in deciding whether to deal with the matter.
11. In the current matter the Department has placed significant weight on the resourcing issue. Whilst the resourcing issue is of relevance, the other issues put forward by Mr Feeney are in my view of equal or possibly greater relevance. The fact that the information provided under GIPA is unrestricted and not subject to any caveat is a significant basis for the operation of the GIPA Act. It is also however a significant basis for the structure of other parts of the GIPA Act, and the ensuing need for agencies to expend more resources than those that they might have expended under the former Act, the Freedom of Information Act 1989 (repealed) which does not require the same level of analysis.
12. From a transactional perspective individuals or entities can apply for government information that can be put to any use or purpose which is not contrary to law.
13. Likewise, this lack of limitation on the use of the information has resulted in the public interest balancing provisions as set out in the Table to s 14 whereby an agency is required (where relevant) to balance the competing specified public interest considerations against disclosure with the general public interest in favour of disclosure of Government information. Arguably if the information access regime placed restrictions on the use of the information, more information might be released and the agency resources directed more to placing limitations on the use of the information. That however is not the regime in force under the GIPA Act.
14. Mr Feeney set out the types of considerations or factors that he believed where relevant and necessary for the Department to consider when deciding whether to exercise the discretion and deal with the access application.
15. If a matter is to be considered on a case by case basis, as the parties tend to agree, then in my view a matter under s 60 (1) (e) would in all likelihood raise the following issues:

• A consideration of the resource implications involved for complying with the access application.
• Is the information of a type that is likely to have a claim for privilege or some other legal basis for withholding production under a subpoena.
• Is there a clear legitimate forensic purpose when the nature of the information is considered in the context of what is known about the court proceedings and is the material likely to be available to an applicant.
• Is the matter a civil matter or a criminal matter, and is it a matter where the applying party bears no particular onus or requirement to disclose matters to the court (such as defendant in criminal proceedings).
• What is the likely financial cost to both the applicant and the agency in responding to a GIPA application contrasted with a subpoena process via the court taking into account what is know from the factors above.

1. These examples would not be exhaustive, but neither would the agency be required to pursue these factors beyond an analysis on the information available as part of the preliminary processes already in place in deciding how to apply the discretion in s 60. In addition none of these matters would appear onerous on the Department in the current matter, having regard to their own evidence of the level of inquiries conducted as set out at [29] to [31] of the affidavit of J Cobbin (Exhibit 'R-1'). It was open to the decision maker on the available evidence to consider and refer to these matters in making their decision.
2. The deponent notes that they were not the decision maker in the matter. In that regard the Tribunal only has the evidence of the Notice of Decision dated 3 March 2020 (Exhibit 'A-1') to determine the process and scope of considerations that the decision maker traversed in reaching their decision to exercise the discretion against Mr Feeney.
3. In my view this consideration of all likely factors is necessary in determining whether to apply the discretion. However the importance of the available factors will differ from one case to the next depending on the circumstances.
4. Little evidence was given as to the nature and circumstances of the number of applications where s 60 (1) (e) was enlivened which the Department decided to deal with.
5. Whilst the Department has set out the relevant processes involved in all types of GIPA applications, (including all types of outcomes including 'declining to deal' outcomes- Exhibit 'R-1' [10] - [18]), they also set out the steps involved when a subpoena is served on the Department. (Exhibit 'R-1' [19] - [22]). I see nothing in the evidence as set out in those paragraphs that is inconsistent with the steps or identified issues I suggest above at [78]. In my view on the evidence in the current proceedings it was open to the Department to make a decision based on a broader range of relevant factors rather than to focus on resourcing issues.
6. In the current matter I attach weight to the following matters: 1. The resources involved in responding to a subpoena as opposed to processing the access application, 2. Whether there is evidence to conclude that the applicant is attempting to circumvent the court process, 3. Whether there is a valid reason put forward by the applicant as to why the information is sought when contrasted with the ordinary right of parties to issue subpoena in proceedings. In determining this issue the role of parties to proceedings and the nature of the proceedings may be relevant in determining whether any party bears an onus, or whether there is a positive requirement to disclose all relevant matter to the court.
7. I find that on the available evidence the resources issue would be fairly even. In weighing up matters in the public interest both Mr Feeney and the Department are funded out of public monies. Both a subpoena and a GIPA application would require some resources, but other than the need to consider factors relating to public interest considerations against disclosure, there is no evidence that in the current matter anything of any significant would additionally attach to the GIPA process from a resourcing perspective.

Conclusion

1. The correct and preferable decision is that in respect of the decision of the respondent dated 3 March 2020, the decision to refuse to deal with the application will be set aside.
2. The Department is to deal with the application of Mr Feeney dated 10 February 2020 in accordance with the provisions of the GIPA Act concerning formal access applications for Government information.
3. The time to deal with the application under the GIPA Act will commence the day following publication of these reasons for decision and orders.
4. I therefore make the following orders:

Orders 1. The decision of the respondent dated 3 March 2020 is set aside. 2. In substitution of that decision the respondent is to deal with the application as a formal application under the GIPA Act. 3. The period under section 57 (1) of the GIPA Act for the respondent to decide the access application will commence the day after publication of these reasons.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 November 2020